BILL ANALYSIS �
AB 1178
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: AB 1178
AUTHOR: Ma
AMENDED: June 22, 2011
FISCAL: Yes HEARING DATE: July 6, 2011
URGENCY: No CONSULTANT: Caroll
Mortensen
SUBJECT :
SUMMARY : SOLID WASTE IMPORT RESTRICTIONS
Existing law :
1) Under the California Constitution, authorizes a city or
county to "make and enforce within its limits all local,
police, sanitary, and other ordinances and regulations not
in conflict with general law." (Cal. Const. Art. XI �7).
2) Under Planning and Zoning Law, requires cities and counties
to adopt a general plan that includes seven mandated
elements (land use, circulation, housing, conservation,
open space, noise, safety). It also requires cities and
counties to adopt zoning ordinances regulating, for
example, the use of buildings, structures, and land.
(Government Code �65000 et seq.).
3) Under the California Environmental Quality Act (CEQA),
requires lead agencies with the principal responsibility
for carrying out or approving a proposed discretionary
project to prepare a negative declaration, mitigated
declaration, or environmental impact report (EIR) for this
action, unless the project is exempt from CEQA (CEQA
includes various statutory exemptions, as well as
categorical exemptions in the CEQA guidelines). (Public
Resources Code �21100 et seq.).
4) Under the California Integrated Waste Management Act of
1989 (Act):
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a) Requires each city or county source reduction and
recycling element to include an implementation schedule
that shows a city or county must divert 25% of solid
waste from landfill disposal or transformation by
January 1, 1995, and must divert 50% of solid waste on
and after 2000.
b) Declares that it is in the public interest for the
state to authorize and require local agencies, as
subdivisions of the state, to make adequate provisions
for solid waste handling, both within their respective
jurisdictions and in response to regional needs (Public
Resource Code �40002).
c) Makes the following findings and declarations:
i) That integrated waste management plans
prepared and adopted by local agencies shall
conform, to the maximum extent possible to the
policies and goals established under the Act.
ii) That decisions involving the establishment or
expansion of solid waste facilities should be
guided by an effective planning process, including
meaningful public and private solid waste industry
participation.
iii) That it is the policy of the state and the
intent of the Legislature that each state,
regional, and local agency concerned with the solid
waste facility planning and siting process involve
the public through public hearings and informative
meetings and that, at those hearings and other
public forums, the public be granted the
opportunity to respond to clearly defined
alternative objectives, policies, and actions.
iv) That it is the policy of the state and the
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intent of the Legislature to foster and encourage
private solid waste enterprises. In furtherance of
that policy, it is the intent of the Legislature
that each state, regional, and local agency
concerned with the solid waste facility planning
and siting process involve the private solid waste
industry.
d) Requires that if a county determines that existing
capacity will be exhausted within 15 years or additional
capacity is desired and that there is no area available
for the location of a new solid waste transformation or
disposal facility or the expansion of an existing solid
waste transformation or disposal facility which is
consistent with any applicable city or county general
plan, the siting element must include a specific
strategy for the transformation or disposal of solid
waste in excess of remaining capacity. (�41703).
e) States that local, state, and federal agencies
generating solid waste that is sent to a host
jurisdiction for disposal should be encouraged to
provide the host jurisdiction with information on the
amount of solid waste, and regarding any solid waste
source reduction, recycling, or composting programs that
have been implemented by the agency, to assist the host
jurisdiction in developing and implementing planning
(�40900.1).
f) Authorizes a city or county to assess special fees of
a reasonable amount on the importation of waste from
outside of the county to publicly owned or privately
owned facilities (�41903).
This bill :
1)Prohibits a city or county, including by an ordinance
enacted by the voters of that city or county, from
restricting or limiting the importation of solid waste into
a privately owned solid waste facility in that city or
county based on the place of origin.
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2)States that the restriction above does not do any of the
following:
a) Require a privately owned solid waste facility or
privately operated solid waste facility to accept solid
waste from outside the city or county where the facility
is located.
b) Allow a privately owned solid waste facility to
abrogate a written disposal agreement guaranteeing
permitted capacity to a host jurisdiction, including a
regional agency.
c) Prevent a city or county from exercising its land use
authority, including making a zoning, permitting, or
other land use determination - subject to #1 above.
COMMENTS :
1) Purpose of Bill . According to the author, AB 1178 ensures
the ability to import and export solid waste and recyclable
materials without barriers; maintains adequate and
appropriate capacity for the proper management of waste and
recyclables; and keeps the competition high and consumer
rates affordable for these services.
2) Background . Before the passage of the Act, the state did
not have a coherent policy to ensure that its solid waste
was managed in an effective and environmentally sound
manner. Over 90% of the state's solid waste was disposed
into landfills, some of which posed a threat to
groundwater, air quality, and public health. In 1989, the
Legislature passed the Act acknowledging that there was an
urgent need for state and local agencies to enact and
implement an aggressive new integrated waste management
program.
3) Measure E and Potrero Hills . According to the author, AB
1178 is in response to Measure E, a 1984 Solano County
initiative that limits the amount of solid waste imported
into Solano County to a maximum of 95,000 tons per year.
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At the time of this initiative, Solano County was importing
approximately 500,000 tons of solid waste annually from San
Francisco.
In 1992, the Legislative Counsel of California and the
County Counsel of Solano County opined that Measure E
violated the commerce clause of the United State
Constitution because it discriminates against interstate
commerce. In light of these opinions, the Solano County
Board of Supervisors (Board) announced that it would not
enforce Measure E. Without Measure E, solid waste has been
exported from other areas of the state to Solano County for
disposal at facilities like the Potrero Hills Landfill.
The Potrero Hills Landfill in Solano County currently
receives approximately 900,000 tons of solid waste
annually, including 600,000 tons originating from outside
of the county. The landfill is expected to reach capacity
by 2016. There are plans to expand the Potrero Hills
Landfill from 320 acres to 580 acres and to increase the
maximum height from 220 feet to 345 feet, which will extend
the life of the landfill for another 35 years. The
project contains habitat mitigation that includes
preserving and enhancing approximately 994 acres of
grassland, wetland, and water features. The cost of the
project is approximately $110 million.
On June 9, 2009, the Board certified a final Environmental
Impact Report (EIR) for the Potrero Hills Landfill
Expansion project. Due to legal challenges, this was the
third time in four years that the Board certified the final
EIR. On October 21, 2010, the San Francisco Bay
Conservation and Development Commission approved a permit
for the project.
On June 10, 2009, the day after the Board certified the
final EIR, the opponents of the project filed a lawsuit in
the Solano County Superior Court to enforce Measure E.
On May 12, 2010, the court issued an opinion acknowledging
that Measure E as drafted raises valid commerce clause
concerns because it would limit the importation of waste
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from out of state. However, the court invoked a rarely
used judicial authority to actually rewrite Measure E to
make it constitutional. The court explained that "Measure
E, if rewritten to apply only to waste generated within
other counties in California, would not offend the commerce
clause." The court ruling has been appealed to the
California Court of Appeal.
If the outcome of the case is in support of Measure E, the
Potrero Hills Landfill's current waste load would be cut by
as much as 85%, and could be even lower depending on how
much of the 95,000 ton quota imposed by Measure E would be
allocated to the facility. Counties in the Bay Area and
other parts of Northern California rely on the Potrero
Hills Landfill for its solid waste management. Thus, these
counties would have to find alternative ways to manage
their solid waste that would otherwise go to the Potrero
Hills Landfill.
4) Anti-Trust Issues . Beginning in 2008, then-California
Attorney General Jerry Brown and the U.S. Department of
Justice investigated the merger of two of the three largest
waste-hauling companies in the country, Republic Services,
Inc. (Republic) and Allied Waste Industries, Inc. (Allied),
for antitrust-law implications. The investigation found
that, before the merger, Republic's Potrero Hills Landfill,
Allied's Keller Canyon facility in Contra Costa County, and
Republic's Vasco Road site in Alameda County were the
primary competitors in the waste disposal industry in the
San Francisco Bay Area. Moreover, the Attorney General
determined that competition between these three landfills
kept the price charged for disposal (i.e. tipping fees) to
competitive levels. To address the loss of competition
that would occur if one company controlled all three
landfills, the Attorney General entered into a consent
decree that allowed Allied and Republic to merge, but
required the divestiture of the Potrero Hills Landfill.
The Potrero Hills Landfill is now owned by Waste
Connections, Inc.
Attorney General Brown filed an amicus brief in the Measure E
litigation explaining that if Measure E was enforced, the
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Potrero Hills Landfill would only be able to accept a very
limited amount of out-of-county waste and the competitive
benefits of the divestiture required by the Attorney
General and the U.S. Department of Justice will be lost.
The Attorney General concluded that Measure E would
increase municipal solid waste disposal costs in the San
Francisco Bay Area and "businesses in the area will be
placed at a competitive disadvantage to their competitors
in other areas and states where �waste disposal]
competition is greater."
5) Don't forget the general plan, zoning, and CEQA . The
general plan is the "constitution for all future
development." The general plan is the single most
important planning document. Any subordinate land use
action, such as a zoning ordinance, tentative map, or
development agreement that is not consistent with a general
plan is invalid at the time it is passed. The land use
element, for example, must designate the general location
and extent of land uses for certain purposes, such as
housing, open space, education, public buildings and
grounds, solid and liquid waste disposal facilities, and
other categories of public and private land uses. Zoning
ordinances regulate the use of buildings, structures, and
land.
AB 1178 provides that this bill does not prevent a city or
county from exercising its land use authority - as long as
it is subject to the key provision in this bill prohibiting
restrictions or limits on importation of solid waste into a
privately owned facility based on the place of origin.
This is an indirect effort to preempt local land use
authority. If a city or county had very limited areas
identified in the general plan for solid waste disposal
that does not accommodate solid waste from outside the
jurisdiction, for example, AB 1178 seeks to trump the
general plan and related zoning ordinance provisions.
While AB 1178 does not allow a privately owned solid waste
facility to abrogate a written "disposal agreement"
guaranteeing permitted capacity to a host jurisdiction -
there is nothing requiring a facility operator to accept
such a provision. Moreover, "disposal agreement" is not
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even defined in state law.
If there is a condition of approval for a solid waste facility
relating to importation of solid waste, AB 1178 enables
that to be ignored if there is no "disposal agreement." If
such a condition was based on a mitigation measure that was
part of a certified EIR under CEQA, then AB 1178 would also
override a mitigation measure under CEQA.
An unintended consequence of AB 1178 may be for local
governments to simply not approve new or expanded solid
waste facilities knowing that importation restrictions are
prohibited. For example, why should Sonoma County approve
a solid waste facility to accommodate solid waste from a
portion of that county for 20 years without importation
based on its general plan, if the facility owner can turn
around and fill it up in 2 years with imported waste from
San Francisco?
6) Other policy considerations . AB 1178 poses the potential
for changing the dynamic of waste flows in California.
While AB 1178 is intended to address the Measure E issue in
Solano County, it is not limited to Solano County and has
statewide effect. The flow of waste in the state has
followed typical market dynamics (e.g., cost, availability,
access). There have been instances where local
initiatives and state policymakers have intervened, but the
original tenets of the Act have largely prevailed.
Also, the May 2010 decision of the Solano County Superior
Court is under appeal. The passage of AB 1178 would negate
the outcome of that appeal.
Given the renewed interest in waste flow issues, solid
waste facility capacities, and local control versus
statewide policy, it would be prudent to have a wider
policy discussion on these issues.
7) Support and Opposition Arguments . Supporters of the bill
generally contend that limiting importation and exportation
of waste conflict with the goals of the Act and obstruct
the flow of waste throughout the state. They contend that
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many local jurisdictions depend on state-of-the art
regional facilities for their recycling needs and flow
restrictions prevent effective and environmentally sound
facilities from being utilized. Supporters state that AB
1178 preserves local authority to site, permit, and oversee
waste activities while preserving the regional waste system
established by the Act. Also, they note that in the past 10
years over 100 landfills have closed while no new landfills
have opened.
Opponents to AB 1178 state that it interferes with judicial
matters, usurps local authority and hinders local
jurisdictions' solid waste planning activities. They also
contend that AB 1178 will have unintended consequences by
eliminating local jurisdictions' flexibility to manage
their long-term community needs. Opponents from the area
around the Potrero Hills Landfill state that Measure E
should be enforced to limit out-of-jurisdiction waste.
They state that expansion of Potrero Hills is not needed as
there is adequate regional, as well as statewide, capacity.
8) Amendments needed . If AB 1178 passes this Committee, it
should be amended to change, on page 3, line 34, the word
"disposed" to "disposal." The terms "disposal agreement"
and "abrogate" should also be clarified for effective
implementation. Also, the intent language is too far
reaching and should be stricken from the bill.
SOURCE : California Refuse Recycling Council
SUPPORT : Atlas Disposal Industries
Blue Line Transfer, Inc.
Bridgeport Sales and Service
Burrtec Waste Industries
Calasian Chamber of Commerce
California Association of Sanitation Agencies
California Teamsters
City of Fairfield
City of Vacaville
Commercial Fleet Services, Inc.
Consolidated Fabricators Corp.
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County of Sacramento Board of Supervisors
Davis Waste Removal
Desert Valley Disposal
East Bay Sanitation Company
EDCO Waste and Recycling Services
Elk Grove Waste Management
Freeman and Williams, LLP.
Fremont Recycling and Transfer Station
Garaventa Enterprises
Garden City Sanitation, Inc.
Gilton Solid Waste Management, Inc.
Heffernan Insurance Brokers
Livermore Sanitation, Inc.
Marin Sanitary Service
Napa Recycling and Waste Services, LLC.
National Solid Waste Management Association
Olympic Wire and Equipment, Inc.
Palm Springs Disposal Services
Palo Verde Valley Disposal Service
Recology, Inc.
Rehig Pacific Company
SSI Schaefer Systems International
Sacramento Recycling and Transfer Station
Salinas Valley Solid Waste Authority
Soft-Pak
Solano County Board of Supervisors
Solid Waste Insurance Managers
South Lake Refuse and Recycling
South San Francisco Scavenger Co.
Southern California Disposal and Recycling Co.,
Inc.
Stockton Tri Industries, Inc.
Truck Lubrication Co., Inc.
Turlock Scavenger Company
Upper Valley Disposal and Recycling
Vacaville Chamber of Commerce
Varner Bros., Inc.
Varner and Sons, Inc.
Vence Consulting
Waste Connections, Inc.
Westhoff, Cone and Holmstedt
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OPPOSITION : Alameda County
California Resource Recovery Association
Californians Against Waste
California League of Conservation Voters
Center of Biological Diversity
City of Glendale
Kern County Board of Supervisors
League of California Cities
Los Angeles County Solid Management Authority
Merced County Regional Waste Management
Authority
Natural Resources Defense Council
North Valley Coalition
Northern California Recycling Association
Orange County Board of Supervisors
Sierra Club California
Solano County Orderly Growth Commission
Solid Waste Association of North America
Stopwaste.org
Sustainability, Parks, Recycling and Wildlife
Legal Defense Fund
Western Placer Waste Management Authority
Yuba Group Against Garbage